An Article 32 hearing is a preliminary investigation required under the Uniform Code of Military Justice (UCMJ) before a case can proceed to a general court-martial. It is roughly equivalent to a civilian probable cause hearing and is designed to determine whether sufficient evidence exists to justify a full trial. Named after Article 32 of the UCMJ (10 U.S.C. § 832), it is mandatory for serious charges that may result in general court-martial. The hearing allows the accused to hear evidence, cross-examine witnesses, and present evidence in their own defense. It serves to protect due process by ensuring that baseless or unsupported charges do not proceed to the most serious level of military trial.
Cross-examination at Article 32 hearings is conducted aggressively and with wide latitude, particularly by the defense. The defense counsel may question the government’s witnesses to assess credibility, expose inconsistencies, or challenge their version of events. In some cases—especially those involving sexual assault—this process has drawn criticism for being intrusive. Despite the absence of full evidentiary protections, the investigating officer may limit questioning that is irrelevant or abusive. Government representatives may also cross-examine defense witnesses. The investigating officer retains final authority over questioning and may intervene if necessary. Effective cross-examination is a key defense tool during this hearing.
The investigating officer in an Article 32 hearing is appointed by the commander who initiates the investigation. This commissioned officer must be impartial and cannot be the accuser, trial counsel (prosecutor), or part of the accused’s chain of command. The officer may or may not be legally trained, though it is common practice to assign a judge advocate due to the legal complexity of such hearings. If the investigating officer is not a lawyer, they may seek neutral legal guidance but cannot receive advice from either side’s counsel. Their primary role is to gather facts, review evidence, and provide a written report with recommendations on case disposition.
No, the accused is not required to testify during an Article 32 hearing and may invoke the right to remain silent. If they choose to speak, they may do so either under oath or through an unsworn statement. An unsworn statement cannot be cross-examined, but it still becomes part of the hearing record. Defense counsel typically advises on the strategic value of making a statement. While remaining silent cannot be used against the accused, providing a well-prepared unsworn statement may help influence the investigating officer’s recommendations or the convening authority’s decision on whether to proceed to trial.
The primary purpose of an Article 32 hearing is to determine whether probable cause exists to believe that the accused committed the alleged offenses and whether the charges should proceed to a general court-martial. It serves as a safeguard to prevent wrongful prosecutions by allowing early examination of the government’s evidence and the opportunity for the defense to challenge the case. The investigating officer issues a recommendation on whether the charges are supported and whether any modifications or dismissals are warranted. This hearing ensures the process remains fair and prevents a general court-martial unless the case is properly substantiated.
After the hearing, the investigating officer compiles a report summarizing the evidence, assessing probable cause, and making a recommendation on whether each charge should proceed to general court-martial. This report is submitted to the commander, who serves as the court-martial convening authority. The commander, in consultation with legal advisors, reviews the report and decides whether to dismiss the charges, refer them to a lower-level court, or proceed to general court-martial. This step concludes the pretrial investigation phase and marks the formal decision point for initiating a military criminal trial. The Article 32 hearing record becomes part of the official case file.
Yes, an Article 32 hearing is somewhat analogous to a civilian grand jury or preliminary hearing. Both are designed to assess whether probable cause exists to proceed to trial. However, unlike a grand jury, which typically meets in secret and does not allow the accused to participate, an Article 32 hearing is adversarial in nature. The accused is present, has the right to counsel, can cross-examine witnesses, and may present evidence. The process is more transparent and allows the defense more active participation in challenging the government’s case before trial. This makes the Article 32 hearing a stronger safeguard for the accused.
Critics argue that Article 32 hearings can be overly harsh on alleged victims, especially in sexual assault cases, due to aggressive and intrusive cross-examinations by defense counsel. Unlike civilian preliminary hearings, the Article 32 process allows wide-ranging questioning, including inquiries into the victim’s sexual history, which can be traumatizing. Notably, cases have been reported where victims were interrogated for dozens of hours over multiple days. These practices have sparked calls for reform, with suggestions to limit questioning scope or require judge advocates as investigating officers. While reforms are underway, the criticism remains that Article 32 may discourage victims from participating in military justice proceedings.